The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their permanent partial impairment rating and monetary award have been correctly calculated. A file review was held on November 15, 2023 to consider the worker's appeal.

Issue

Whether or not the worker’s permanent partial impairment rating and monetary award have been correctly calculated.

Decision

The worker’s permanent partial impairment rating and monetary award have been correctly calculated.

Background

The worker submitted a Worker Incident Report to the WCB on March 3, 2022, reporting they injured their right leg after tripping on a wooden pallet with steel corners, hitting their shin on the steel at work on February 22, 2022. The employer provided the WCB with the Employer’s Accident Report on the same date, confirming the mechanism of injury and noting a coworker transported the worker to a local hospital for medical treatment. The employer noted on the Report they did not have modified duties available for the worker. The hospital report from February 22, 2022 received by the WCB on June 1, 2022, noted the worker had a 12cm laceration on their right shin that was treated with stitches and the worker was prescribed antibiotics. The worker returned to the local hospital on February 25, 2022 reporting increased burning around the laceration. The treating physician noted no redness, warmth or discharge and provided the worker with a stronger antibiotic medication.

On February 28, 2022, the worker attended for an initial appointment at a local walk-in clinic reporting pain in their right lower leg. The physician examined the worker and diagnosed a right lower leg skin laceration and infection. It was recommended the worker continue with the antibiotic medication and noted the worker was capable of sedentary duties until March 7, 2022. 

The WCB accepted the worker’s claim on March 4, 2022. Also on March 4, 2022, the worker attended for further medical treatment with their family physician reporting ongoing burning sensation in their right lower leg. On examining the worker, the treating physician noted the worker’s laceration was about 8 inches long with stitches, redness around the laceration, down about 10 inches and tenderness to the bone. The physician recommended the worker attend for an x-ray, follow-up with the wound clinic to have the stitches removed and provided the worker with a further prescription for antibiotics. A diagnosis of cellulitis was provided. An x-ray taken on March 4, 2022 found no acute fracture or dislocation. The worker advised the WCB on March 24, 2022 they had returned to work on modified duties on March 21, 2022.

The worker contacted the WCB on February 16, 2023 noting the scar from the laceration was “…quite evident” and at the request of the WCB, provided photographs on February 27, 2023. The worker’s file was reviewed by a WCB physiotherapy consultant on May 16, 2023 to determine if the worker was entitled to a cosmetic impairment award. The consultant noted the worker was likely at maximum medical improvement from their diagnosis of a right lower leg strain and laceration and cellulitis. It was further noted the worker had a previous compensable injury to their right shin that resulted in scarring and that any cosmetic impairment would reflect the total cosmetic impairment to the right shin from both compensable injuries. The WCB physiotherapy consultant indicated the worker lived a significant distance from the WCB’s office and as such, photographs could be used to assess the worker’s cosmetic impairment. Accordingly, the WCB physiotherapy consultant requested photographs from different distances be provided by the worker. On May 18, 2023, the worker submitted the requested photographs. The photographs were reviewed by the WCB physiotherapy consultant on May 30, 2023 who opined the worker’s previous compensable injury to the right shin resulted in scarring and typically, a second injury to the same area would not result in an additional cosmetic rating. However, the consultant further provided “…considering the visibility of the scarring related to this claim, I am recommending a 1.00% cosmetic impairment for the new scar.” On June 2, 2023, the WCB advised the worker of the permanent partial impairment rating of 1.00% and the related monetary award.

The worker requested reconsideration of the WCB’s decision on their impairment rating and monetary award to Review Office on June 13, 2023. In their submission, the worker noted the scarring left them with a disfigurement that would not go away. Further, the worker indicated they experienced discomfort with the scarring when it was cold and in the summer, felt discomfort before the scarring was visible, which caused them anxiety. On June 26, 2023, the worker contacted Review Office to discuss their reconsideration, noting they experienced numbness around their scar and cold sensitivity causing pain in colder months. Review Office discussed the worker’s concerns with the WCB physiotherapy consultant on July 11, 2023 who noted the impairment rating calculated previously accounted for “…any changes in sensation or sensitivity directly over or adjacent to the scar.”

Review Office determined the worker’s permanent partial impairment rating and monetary award were calculated correctly on July 11, 2023. Review Office accepted and agreed with the impairment rating calculated by the WCB physiotherapy consultant and noted the worker’s concerns regarding changes in sensation and sensitivity were included in that rating, with no additional rating available. Further, Review Office noted the worker raised other concerns related to their WCB claim that had not been adjudicated by the WCB and could not be considered by Review Office.

The worker filed an appeal with the Appeal Commission on August 2, 2023 and a file review was arranged. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On February 26, 2024, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors. As the date of injury is identified as February 22, 2022, the applicable legislation is the Act as it existed at that time.

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid. Subsection 4(9) provides that the WCB may award compensation in respect of an impairment that does not result in a loss of earning capacity.

Subsection 38(1) of the Act provides that the WCB "shall determine the degree of a worker's impairment expressed as a percentage of total impairment." Subsection 38(2) provides a formula to determine the monetary value of an impairment award.

The WCB's Board of Directors has established Policy 44.90.10, Permanent Impairment Rating (“the PPI Policy"). Impairment benefits are calculated under the PPI Policy by determining a rating that represents the percentage of impairment as it relates to the whole body. The PPI Policy provides that the degree of impairment will be established by the WCB's Healthcare Services Department in accordance with the PPI Policy, and that whenever possible, and reasonable, impairment ratings (with the exception of impairment of hearing ratings) will be established strictly in accordance with Schedule A to the PPI Policy.

Schedule A to the PPI Policy provides that permanent impairment from a workplace injury is evaluated for the following deficits:

• loss of a part of the body;

• loss of mobility of a joint(s);

• loss of function of any organ(s) of the body identified in the Schedule; and

• cosmetic disfigurement of the body.

Section 9 of Schedule A also allows for a cosmetic rating for disfigurement, which is described as an "altered or abnormal appearance." Section 9 provides that the rating for disfigurement is done by a WCB Healthcare Advisor and the degree of disfigurement is determined on a judgmental basis. Section 9 also provides that in order to maintain consistency in ratings for disfigurement and to make the ratings as objective as possible, the WCB's Healthcare Services Department will make reference to a folio of disfigurement ratings established in previous cases.

Additionally, the WCB's Board of Directors has established Policy 44.10.20.10, Pre-Existing Conditions (the "Pre-existing Policy") to address eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of the Policy is identified, in part, as follows:

The Workers Compensation Board (WCB) will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

The Policy goes on to provide that,

“If a worker is injured as a result of a compensable accident and the injury results in a rateable impairment, the existence of a pre-existing condition will not negate the worker's entitlement to an impairment award. However, if the worker's impairment (whether caused by the compensable accident or a surgical intervention made necessary by the compensable accident) is an enhancement of a pre-existing but non-compensable impairment, the worker is eligible for an impairment award based on the difference between the new combined rating and the rating assigned to the pre-existing condition.”

Worker's Position

The worker was self-represented and provided a written submission in support of his appeal. The worker stated that he feels that $1,560.00 inadequately compensates him for his injury given that the compensation that he received from MPI for some smaller scars on his head was far more than this amount. He also indicated that the scars on his leg cause discomfort due to the cold and in the summer these scars are visible and cause him anxiety. In a separate submission, dated September 11, 2023 the worker indicated that he felt that the $1,560.00 did not adequately compensate him for his injury given he was paid $1,250.00 by WCB for a smaller scar 10 years prior.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker's permanent partial impairment rating has been correctly calculated. For the worker's appeal to be successful, the panel must find that the Act and/or WCB policy were not properly applied in establishing the worker's permanent partial impairment rating. The panel is unable to make that finding.

The relevant sections of the PPI Policy, namely Section 9 of Schedule A provides that the rating for disfigurement is done by a WCB Healthcare Advisor and the degree of disfigurement is determined on a judgmental basis. Accordingly, the WCB Healthcare Advisor has a high degree of discretion in making Permanent Impairment Ratings. Further, Section 9 also provides that in order to make the ratings as objective as possible, the WCB's Healthcare Services Department will make reference to a folio of disfigurement ratings established in previous cases. The WCB file indicates that in its permanent partial impairment assessment the WCB performed a comparison of the worker’s photos with a folio of disfigurement ratings established in previous cases. In this Appeal, the appeal panel requested additional medical information from the WCB Healthcare Advisor prior to discussing the case further.

In response to the panel’s request for additional medical information the WCB Healthcare Advisor confirmed that the photos that were provided, dated May 18, 2023, were used to assess the cosmetic impairment and that all photos on file were concordant with a 1.00% impairment rating, related to the WCB injury on this claim.

The WCB Healthcare Advisor also noted that there was a previous compensable injury to the right shin, resulting in scarring and that this typically would not represent an additional cosmetic rating for the right lower leg. However, in consideration of the visibility of the scarring related to this claim, the WCB Healthcare Advisor recommended a 1.00% cosmetic impairment for the new scar.

Based on their assessment and in the exercise of their judgment, the WCB medical advisor concluded that the disfigurement impairment related to the compensable injury was a 1.00% cosmetic impairment for the new scar.

Although the WCB Healthcare Advisor’s application of the PPI Policy is not binding upon the panel, the explanation provided gives the panel a reasonable explanation regarding how the PPI percentage was achieved. Accordingly, the panel is satisfied that the WCB medical advisor's assessment was conducted in accordance with the process that is set out in the PPI Policy and accepts the medical advisor's conclusion in this regard.

In arriving at our decision, the panel acknowledges the worker's submission with respect to the fact that the worker feels that the PPI award was incorrect in part due to amounts they have received from Manitoba Public Insurance (“MPI”) for scars which they claim are smaller than those being assessed by the WCB, however, the panel is limited to interpreting the Act and the applicable policies of the WCB and is not bound by decisions of MPI.

The panel further acknowledges the worker's submission with respect to the impact the scar has had on their life, including mental anguish due to the visibility of the scar and its sensitivity when it is exposed to the cold. The panel notes, however, that an impairment award is not related to, or intended to compensate a worker for, changes in quality of life, or mental anguish, pain or suffering resulting from an injury. Additionally, the panel notes that changes in sensitivity of a scar are not compensable in a permanent partial impairment award.

The panel has also reviewed the calculation of the monetary amount of the permanent partial impairment award and finds that it has been correctly calculated at $1,560.00 in accordance with the formula in subsection 38(2) of the Act.

Based on the foregoing, the panel finds that the WCB correctly applied the provisions of the Act, regulations and WCB Policy in calculating the worker's degree of permanent partial impairment and associated monetary award in this case. The panel therefore finds that the worker's 1.00% permanent partial impairment rating and $1,560.00 monetary award have been correctly calculated.

The worker's appeal is dismissed.

Panel Members

N. Smith, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

N. Smith - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 5th day of April, 2024